Claiming the ownership of the mark, Merriman said, “After I was given the nickname ‘Lights Out’ ® in high school, I decided to create a brand while I was at the University of Maryland. From 2002-2005 I sold approximately 2000 t-shirts printed with the Lights Out ® logo and the money helped pay my way through college. I’ve carefully grown and developed that brand ever since, but Nike still insists on using it.”

In fact, Merriam registered the nickname in 2007, and in 2010 it achieved incontestable status that affords the highest trademark protection under federal law. The lawsuit additionally alleged that Nike knew of Merriman’s “Lights Out” brand when it entered into an endorsement contract with Merriman in 2006. Merriam seeks summary judgment on both Nike’s trademark infringement and his false endorsement claim. He has framed Nike’s infringement as “blatant counterfeiting” as Nike allegedly knew that the mark was registered.

According to the filing, Merriman seeks statutory damages of $18 million in addition to Nike’s gross profits on false endorsement claims. Nike uses the trademark on 56 different products.

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